KluwerArbitration

Document information Chapter 3, Part II: Commentary on the Swiss Rules,

Article 25 [Evidence and hearings, II]
Publication Gabrielle Nater-Bass; Stefanie Pfisterer
Arbitration in Switzerland:
The Practitioner's Guide (1) The arbitral tribunal shall give the parties adequate advance notice of the date,
(Second Edition) time, and place of any oral hearing.
(2) Any person may be a witness or an expert witness in the arbitration. It is not
improper for a party, its officers, employees, legal advisors, or counsel to interview
Jurisdiction witnesses, potential witnesses, or expert witnesses.
(3) Prior to a hearing and within a period of time determined by the arbitral tribunal,
Switzerland the evidence of witnesses and expert witnesses may be presented in the form of
written statements or reports signed by them.
(4) At the hearing, witnesses and expert witnesses may be heard and examined in the
Organization manner set by the arbitral tribunal. The arbitral tribunal may direct that witnesses
Swiss Chambers' or expert witnesses be examined through means that do not require their physical
Arbitration Institution presence at the hearing (including by videoconference).
(5) Arrangements shall be made for the translation of oral statements made at a
hearing and for a record of the hearing to be provided if this is deemed necessary
Entry into force by the arbitral tribunal having regard to the circumstances of the case, or if the
parties so agree.
1 June 2012 (6) Hearings shall be held in camera unless the parties agree otherwise. The arbitral
tribunal may order witnesses or expert witnesses to retire during the testimony of
other witnesses or expert witnesses.

I Purpose of The Provision

1 Article 25 concerns oral hearings, in particular the practicalities of preparing and
conducting an oral hearing including hearing witnesses. This includes (i) providing
advance notice of the time and venue, (ii) the form in which witness evidence may be
presented prior to the hearing and during the hearing, as well as (iii) providing a record
of the hearing and interpreters, if deemed necessary by the arbitral tribunal or if the
parties have agreed thereto.
2 The article is to be read in conjunction with Art. 24(2) which gives the arbitral tribunal
the discretion to determine the admissibility and relevance of the evidence. Art. 25
therefore serves as a guideline to the arbitral tribunal and the parties with regard to
organization, preparation and conduct of an oral hearing, while Art. 24(2) ultimately
empowers the arbitral tribunal to assess the evidence submitted in determining the
issues in dispute. Article 25 is further to be read together with Art. 15(2), under which
provision the arbitral tribunal may hold a hearing at any stage of the proceedings to hear
oral arguments or witness testimony, or both.
3 The numbering of Art. 25 2004 Swiss Rules remained unaltered in the revised 2012 Swiss
Rules. However, Art. 25 was restructured substantially: (i) Art. 25(1) remained unaltered;
(ii) former Art. 25(2) was deleted in part and supplemented in part by the provision
previously contained in Art. 25(6) 2004 Swiss Rules; (iii) Art. 25(3) contains the former
P 687 provision of Art. 25(5) 2004 Swiss Rules; (iv) Art. 25(4) was newly inserted; (v) Art. 25(5)
contains the former provision of Art. 25(3) 2004 Swiss Rules; and (vi) the provision
formerly contained in Art. 25(7) 2004 Swiss Rules has become Art. 24(2).
4 The revised Art. 25 provides for more clarity in defining the practicalities of the
preparation of and the taking of oral evidence during an evidentiary hearing.

II Notice of Hearings (Paragraph 1)

A No Obligation to Hold a Hearing
5 When read in conjunction with Art. 15(2), Art. 25(1) provides that the arbitral tribunal is
not obliged to hold an oral hearing. (1) It can do so whenever it considers that such a
hearing would assist in determining the matters before it, so long as it complies with the
parties' right to equal treatment and their right to be heard under Art. 15(1). (2) The Swiss
Rules therefore do not consider oral evidence as indispensable or carrying any more
weight than written evidence. (3)
6 The arbitral tribunal's flexibility to hold hearings is consistent with Swiss case law.
According to the Swiss Federal Supreme Court, an arbitral tribunal seated in Switzerland
does not violate the parties' right to be heard if it renders an award without having
granted the possibility to present their case through oral argument and witness
testimony. (4) This principle even applies where the parties have jointly requested a
hearing, unless the procedural rules of the arbitration provide for such a right. In these
circumstances, the refusal of the arbitral tribunal to permit the parties to orally present
their arguments represents a violation of the right to be heard. (5) Nevertheless, if an
 arbitral tribunal elects not to hold a hearing, it should invite the parties to submit their
arguments in writing. (6)
7 The “documents only” approach also applies outside of Switzerland, in particular where
the parties have expressly or implicitly waived their right to an oral hearing. (7) In
practice and in principle, however, it is rare for an arbitral tribunal to refuse to grant a
party, or jointly the parties, their request to convene a hearing for risk of violating the
parties' right to be heard. (8) Further, it may result in an award being challenged and
being held unenforceable for breach of due process. (9)
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B Adequate Advance Notice of Hearings

8 Article 25(1) requires the arbitral tribunal to give advance notice of the date, time and
place. (10) Advance notice should be provided so as to give adequate time for both the
arbitral tribunal and the parties to prepare for the hearing and in particular the evidence
to be presented. (11)
9 Article 25(1) does not state what constitutes “adequate” notice. The adequacy of the
notice depends upon the nature of the case and the particular circumstances involved. It
is preferable to set the date(s) for the hearing at the commencement of the arbitration,
for example when preparing the provisional timetable in accordance with Art. 15(3). (12)
10 The notice should not only specify the date, time, and venue of the hearing, but also its
projected length.
11 When fixing the time and venue for a hearing, the arbitral tribunal should take into
account scheduling and organizational issues. This includes travel and accommodation,
the availability of a court reporter and interpreters (see Art. 25(5)), if any, as well the
parties' (including their witnesses' and experts') availability. (13) In virtually all cases, the
parties and the arbitral tribunal will endeavor to agree upon mutually-acceptable dates.
(14) The arbitral tribunal should only authoritatively order a hearing where a party
manifestly delays or otherwise hinders it being convened. (15)

III Witness Evidence (Paragraph 2)

A Persons who May Act as Witnesses or Expert Witnesses
12 Article 25(2) provides that any person may be a witness or an expert witness. (16) The
parties are therefore free to select their witnesses and their expert witnesses on
particular issues of fact or expertise which they consider relevant to the dispute. (17) This
therefore excludes any domestic procedural rules of evidence which may prevent party
representatives or other persons from acting as witnesses in the arbitration. (18) Allowing
the parties to rely on whomever they consider relevant to act as a witness is common in
international arbitration (19) and is also contained in Art. 4(2) IBA Rules. It is also
consistent with Art. 24(2) Swiss Rules which gives the arbitral tribunal the discretion to
determine the weight and relevance of the oral testimony.
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13 Article 25(2) clarifies that interested persons and/or corporate officers may also act as
witnesses in international arbitration, which is not the case in some legal traditions. (20)
At the same time, international arbitral tribunals will usually permit adverse parties to
challenge the credibility and reliability of such testimony, taking this into account in
weighing the evidence of the interested persons. (21)
14 With regard to experts, the parties are free to choose any person as their experts.
While Art. 27(5) provides that tribunal-appointed experts need to be independent, this is
less clear for party-appointed experts. In practice, arbitral tribunals virtually never
“disqualify” experts or exclude their testimony for lack of independence. (22) On the
other hand, party-appointed experts should be required to provide their genuinely-held
and sincere professional opinion, and not to assume the role of advocate for a party. (23)
Finally, the arbitral tribunal will take into account the expert's expertise when weighing
the expert evidence.

B Interviewing Witnesses or Expert Witnesses

1 Contact with Witnesses Is Permitted under the Swiss Rules
15 Article 25(2) expressly provides that it shall not be prohibited for counsel to interview
witnesses, potential witnesses or experts. (24) The provision was previously contained at
Art. 25(6) 2004 Swiss Rules.
16 Article 25(2) confirms the practice within international arbitration which permits a
party, its officers, employees, legal advisors or counsel to interview witnesses, potential
witnesses or expert witnesses. (25) This is a welcomed clarification as neither the 1976 nor
the 2010 version of the UNCITRAL Rules provides explicit guidance on this issue. This
solution is well in line with Art. 4(3) IBA Rules. (26)
17 The permission granted to the parties to interview witnesses, and potential witnesses,
addresses the difference in jurisdictional cultures, namely that in certain jurisdictions
(often civil law jurisdictions), (27) ethical rules of the relevant bar associations prohibit
lawyers from contacting witnesses. (28) This is to be compared with certain common law
 jurisdictions in which lawyers will as a matter of course carefully interview potential
witnesses and will subsequently assist them in preparing for testimony. (29) The provision
P 690 therefore reinforces equal treatment of the parties by overcoming these inequitable
positions stemming from domestic law. It also serves to expressly inform practitioners
who are not used to this practice that they are permitted to do so. (30)
2 Interviewing Potential Witnesses to Understand the Facts of the Case
18 Article 25(2) specifically allows interviewing potential witnesses.
19 It is often not possible for counsel to understand the factual matrix of a case without
meeting and discussing the facts with potential witnesses. Witness interviews also permit
counsel to ascertain the relevance of the witness' evidence sought, and to determine
whether they consider it appropriate to nominate the person as a witness in the
arbitration.
20 The interviewing of potential witnesses thus permits counsel to gain a comprehensive
understanding of the facts and the parties' respective positions even in advance of the
arbitration. This inevitably saves time and costs, and permits the parties and the arbitral
tribunal to prepare efficiently for the arbitration.
21 While the Swiss Rules expressly draw a distinction between a potential witness and a
witness in Art. 25(2), they do not indicate whether this distinction is limited to the party's
own witnesses. Commentary on this issue shows that a potential witness does not
“belong” to a particular party; it is therefore in theory not improper for counsel to
interview a witness from the opposing party. (31) This is rare in practice, and would be
subject to any agreement between the parties to the contrary.
22 While Art. 25(2) does not set out the details for potential witnesses, guidance can be
sought from the recently adopted IBA Guidelines on Party Representation. According to
these, when a party representative contacts a potential witness, he should disclose his
identity and the reason for the contact before seeking any information from the potential
witness (Guideline 18). A party representative should also make the potential witness
aware of his right to inform or instruct counsel about this contact and involve such
counsel in any further communication (Guideline 19).
3 Witness Preparation
23 Article 25(2) does not only allow a party and its representatives to interview potential
witnesses, but also to interview witnesses and expert witnesses, meaning that they may
assist them in preparing for testimony. In fact, interviewing potential witnesses has
become standard practice in international arbitration. (32)
24 Article 25(2) does not provide any guidance regarding the permissible scope and
character of witness preparation. The adopted IBA Guidelines on Party Representation
address the subject of witness preparation in more detail. According to Guidelines 21–24,
a party representative may assist in the preparation of witness statements and expert
reports, may meet with witnesses and experts to discuss their prospective testimony and
P 691 assist a witness in preparing for their testimony in direct and cross examination,
including through practice questions and answers. Such contacts should however not
alter the genuineness of the witness or expert evidence, which should always reflect the
witness' own account of relevant facts, events or circumstances, or the expert's own
analysis or opinion.
25 Nonetheless, Art. 25(2) does not override otherwise-applicable national rules of
professional responsibility (and, on the contrary, expressly preserve them). (33) Hence, in
case counsel of the parties are subject to differing national rules of professional conduct,
the level of appropriate conduct with witnesses and experts should be discussed and
agreed upon with the arbitral tribunal.
4 Complaints about Improper Witness Interviews or Preparation
26 Complaints about improper witness interviews or preparation may be raised with the
arbitral tribunal, but in practice, arbitral tribunals will rarely strike witness testimony
from the record or impose other sanctions. (34) However, in line with Art. 24(2), arbitral
tribunals may take the counsel's role in assisting and preparing the witness and their
evidence into account when assessing the testimony of the witness. (35)

IV Written Witness Statements (Paragraph 3)

A Use of Written Witness Statements and Expert Reports
27 Article 25(3) permits witness evidence to be presented in the form of written
statements or reports from expert witnesses prior to the oral evidence as provided for by
Art. 25(4)–(6). This is common practice in international arbitration. (36)
28 Written witness statements permit the parties and the arbitral tribunal to gain an
understanding of the subject matter of each witness' likely testimony. (37) This
understanding will allow the parties to determine whether they wish a witness to appear
at the hearing. (38) In particular where the evidence presented in the witness statement
is repetitive or highly technical, the arbitral tribunal and/or the parties may decide that
a written witness statement is sufficient to deduce that particular witness' evidence. (39)
29 In case a witness having provided a witness statement is called to testify at the
 hearing, the written witness statement assists the parties and the arbitral tribunal in
preparing for the evidentiary hearing more efficiently, thereby saving time and costs. (40)
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30 Moreover, written witness statements may serve as direct evidence of the witness. In
fact, it is now common practice in international arbitration that the written witness
statements serve as direct evidence and that the party presenting the witness will
usually only be able to make a short additional direct examination before the other
party starts with its cross examination. This shortens the length of a hearing. (41) Further,
subject to the method of examining the witness agreed by the parties or ordered by the
arbitral tribunal, oral testimony may be limited solely to clarifying or supplementing
those matters raised in the witness statement. (42)
31 Provision is also often made for rebuttal witness statements, responding to testimony
or documents submitted by a counter-party. (43)

B Forms of Written Witness Statements

32 Article 25(3) does not impose any specific conditions on the form that written
statements must take. In international arbitration practice, one can find at least three
forms of written statements submitted by a witness, namely (i) affidavits (sworn
statements, generally submitted by common law practitioners), (44) (ii) depositions (oral
witness testimony obtained out of court, reduced to writing), or (iii) signed declarations
(unsworn written statements, signed by the witness). (45)
33 In order to maintain a clear understanding of what is expected of the parties in the
arbitration and to permit them to prepare the written evidence throughout the
proceedings, the form of written evidence should be discussed between the parties and
the arbitral tribunal at the outset of the arbitration. (46)
34 Depositions are rarely used in international arbitration. (47) There may also be
reluctance to accept sworn statements in international arbitration since these are
unknown to various jurisdictions. (48) On the other hand, while the admissibility of
unsworn written witness statements may not be accepted in court proceedings in all
jurisdictions, there does not seem to exist mandatory provisions excluding the use of
such unsworn statements in international arbitration. (49)
35 Commentators generally recommend that witness statements in arbitrations should be
unsworn and signed by the witness, as well as include an express reference to the witness
stating that the contents of the statement are true and correct to the best of the witness'
knowledge and belief. (50) Usually, the parties and the arbitral tribunal will agree to the
P 693 submission of unsworn, signed witness statements on the condition that the witness is
available for questioning at the hearing. Unless the parties have agreed otherwise and
consistent with Art. 24(2), the arbitral tribunal is permitted to disregard the witness
statement of a witness not appearing at the hearing at its own discretion. (51)

C Content of Written Witness Statements

36 Article 25(3) is silent on the content of written witness statements. In this respect, the
IBA Rules provide useful criteria in Art. 4(5).
37 The IBA Rules provide that a written witness statement shall contain a full and
detailed description of the facts and the source of the witness' information as to those
facts, sufficient to serve as that witness' evidence in the matter in dispute. The failure to
provide a sufficiently detailed statement will impact on the witness' credibility and may,
in extreme cases, lead to the arbitral tribunal's exclusion of testimony by the witness.
(52)
38 In addition, written witness statements need to contain an affirmation of the truth of
the witness statement.

V Oral Witness Testimony (Paragraph 4)

A Hearings: Common Practice in International Arbitration
39 Article 25(4) to (6) deal with witness evidence in the context of a hearing. While it is
generally considered that documents submitted in the arbitration are primary sources of
evidence, international arbitration follows the common law practice of allowing the
parties to extensively examine and cross-examine witnesses. (53) This allows the arbitral
tribunal as well as the parties to clarify and challenge facts which are in dispute. (54)
Moreover, in the absence of documentary evidence, despite its flaws, in person witness
testimony remains one of the most effective means of ascertaining what actually
happened. (55) Unlike in many civil law jurisdictions, this is a common practice in
international arbitration. (56)
40 Article 25(4) and 25(6) also contain the rules for oral testimony of party-appointed
expert witnesses; separate provisions are provided under Art. 27 for tribunal-appointed
experts. (57) It is generally considered as a matter of course in international arbitration
that expert evidence plays a significant and at times determinative role in deciding the
P 694 dispute. (58) Expert evidence may relate to such matters as quantification of
damages, legal issues such as statutory interpretation, or evidence on complex technical
or factual matters including those in construction disputes. (59)
 B The Arbitral Tribunal's Discretion to Hear Witnesses
41 Pursuant to Art. 25(4) witnesses and expert witnesses may be heard at the hearing and
examined in the manner set by the arbitral tribunal. Article 25(4) grants the arbitral
tribunal the discretion to determine the conditions and the manner under which
witnesses may be heard.
42 It follows from Art. 25(4) and more generally from Art. 15(1) that the arbitral tribunal is
in a position to require from the parties that they submit the names of the witnesses they
intend to call at the hearing and to determine the extent and scope of a witness' direct
testimony at the evidentiary hearing.
43 The second sentence of Art. 25(2) 2004 Swiss Rules formerly required the parties to
submit to the arbitral tribunal and the other party at least fifteen days before the
hearing the names and addresses of the witnesses (factual and expert, if any) which the
party intended to call at the hearing, together with the subject matter(s) and language in
which the witness will testify. This provision was in line with Art. 25(2) 1976 UNCITRAL Rules
and more generally with the common practice in international commercial arbitration. It
assisted the arbitral tribunal and the other party to prepare for the hearing, and to
understand clearly what matters are to be addressed with each witness. (60) However,
the second sentence of Art. 25(2) 2004 Swiss Rules was entirely deleted from Art. 25 in its
revised version of 2012. The deletion is in line with the corresponding deletion in Art. 28
2010 UNCITRAL Rules and may be explained by the expectation (and, in fact, prevailing
practice) that all witnesses will provide written witness statements prior to the
evidentiary hearing, (61) thus rendering unnecessary the filing of a notice of the subject
matter of a witness' testimony. In all likelihood the deletion of the express obligation of
the parties to call the witnesses they intend to examine will, however, not alter the
prevailing practice in international arbitration, i.e., the prior notification by a party to
the opposing party and the arbitral tribunal of the witnesses it intends to examine at the
evidentiary hearing.
44 Under the procedural practice frequently adopted by arbitral tribunals, whereby
written witness statements should in principle replace the examination-in-chief (direct
examination), (62) the issue often arises whether a party can effectively prevent the
appearance of a witness presented by the opposing party by waiving the right to cross-
examine that witness. Since the former second sentence of Art. 25(2) 2004 Swiss Rules
provided that each party shall communicate the names of the witnesses “it” intends to
“present”, this provision could have been interpreted as implicitly granting the party
presenting a witness the right to request that that witness testify orally at the hearing.
However, this provision – being based on the absence of written witness statements –
P 695 merely implies a right of the party that presents a witness to have him or her appear
for direct examination. (63) Where a written witness statement is filed in advance of the
hearing, direct examination has already occurred so that it seems unreasonable to allow
a party to demand oral presentation when cross-examination is not called for. (64)
Nevertheless, it is conceivable that in some cases that would be proper under a right to
fully present one's case. (65)
45 If a witness refuses or fails to appear for oral testimony, it is to be noted that although
the Swiss Rules do not expressly provide for a provision similar to Art. 4(9) IBA Rules, an
arbitral tribunal does have various options available in Switzerland. (66) The arbitral
tribunal can summon a witness to appear, albeit without the additional coercive power
to subpoena a witness (i.e., summon a witness subject to a penalty for failure to comply),
or request judicial assistance in the taking of evidence.

C Witness Examination
1 General Remarks
46 Article 25(4) provides that the arbitral tribunal is free to determine the manner in
which witnesses or expert witnesses are to be examined. This broad flexibility allows the
arbitral tribunal to meet the parties' expectations of how the hearing is to be conducted
and to determine the appropriate procedure in each case. (67) The arbitral tribunal may
take into consideration matters such as the origins of the parties to the dispute. (68)
47 Prior to the evidentiary hearing, and after consultation with the parties, the arbitral
tribunal will usually issue procedural orders or directions for the organization and
structure of the hearing. The arbitral tribunal's orders will determine the order of any oral
submissions, the order of witnesses and (ordinarily) the estimated time for counsel's oral
statements and witness examination. (69)
2 Methods of Examination
48 The method of witness examination is a prominent area of international arbitration,
where the distinction between common and civil law traditions, or the adversarial versus
inquisitorial systems, becomes apparent. (70)
49 The civil law method provides that the arbitral tribunal asks the majority of questions
to the witnesses. (71) By contrast, under the common law method – the method of witness
examination most frequently used in international arbitration – the parties or their
P 696 counsel undertake the majority of the examination process. (72)
50 In international arbitration, the following procedure for witness testimony, based on
the common law method of witness examination, is very common: The examination
 usually commences with direct examination (also known as examination-in-chief) by the
party who has called the witness. (73) As the parties will frequently submit written witness
statements setting forth the direct testimony of the witnesses on whom they rely, the
examination-in-chief is typically relatively short, often aimed at giving the witness the
opportunity to become familiar with the question and answer process. The evidence
given in direct examination usually clarifies or corrects errors in the witness' written
evidence, provides an opportunity to respond to the opposing party's allegations where
an earlier occasion has not arisen.
51 Direct examination is followed by cross-examination, where the opposing party
(through its counsel) asks the witness questions in order to challenge the witness'
evidence, often by contrasting it to contradictory oral or written evidence. The purpose of
cross-examination is also to challenge the witness' credibility. Cross-examination is
sometimes limited to matters addressed in the witness' written witness statement, but
more frequently is permitted to address any matter relevant to the dispute. Objections
to questions by counsel are tolerated. (74) Arbitral tribunals with a civil law orientation
tend to impose greater limits on cross-examination, both in terms of length of
examination, scope of questions and counsel's efforts to “control” a witness. (75) Cross-
examination often takes the majority of time allocated to hear each witness.
52 Following the cross-examination, the party who initially presented the witness is
permitted to ask further questions by way of re-direct examination. Questions in re-
direct examination are usually limited to clarifying only those matters which arose during
the witness' cross-examination. As strict rules of evidence do not apply in international
arbitration, however, this may be done differently in practice; the party may submit
further evidence in re-direct which was not raised in cross-examination if the arbitral
tribunal does not prevent such questioning. (76) Re-direct examination generally takes a
shorter time than cross-examination, depending upon the time taken in cross-
examination and the extent of issues covered. Re-direct examination may be followed by
re-cross examination by the opposing party. (77)
53 In line with Art. 25(4), the arbitral tribunal retains full control over the procedure of
witness examination. (78) It may thus at any time ask questions to a witness on its own
initiative, may limit the time allowed for questioning and may limit or exclude further
questions considered irrelevant or duplicative or if it considers these questions to relate
to facts already sufficiently proven or rebutted. (79)
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3 Allocation of Time
54 The evidentiary portion of the hearing will usually be divided between the two parties'
witnesses, based generally on equal sharing of available time. (80) The amount and
allocation of time at the hearing is often a sensitive and controversial issue. The guiding
principle of this timetable is that each party is allocated an equal amount of time, which
is planned in advance and which its lawyers are free to utilize as they choose (within
general limits). (81) Just as critical, but often overlooked, is the fact that an “equal”
division of the time does not necessarily mean a 50/50 division of time: there are
circumstances where a 50/50 division of time is not required, and may instead amount to
unfair or unequal treatment. (82)
4 Witness Conferencing and Other Methods
55 In light of the procedural flexibility afforded to the parties and the arbitral tribunal in
international arbitration generally, and in particular under Art. 25(4), other methods of
examination are also permissible. (83) These include examining two or more factual or
expert witnesses at the same time (witness conferencing (84) ) or even where a party is
represented by counsel, permitting examinations to be conducted by a party
representative or a party assistant. (85)
5 Video Conferencing
56 The second sentence of Art. 25(4) newly inserted in the 2012 Swiss Rules expressly
provides that witnesses may also give testimony even if not present in the hearing room,
for example via video conferencing. (86) The express reference to video conferencing in
the 2012 Swiss Rules may be seen as one of the tools proposed by the revised Swiss Rules
to speed-up and control the costs of arbitral proceedings, in this particular case, in the
phase of the taking of oral testimony.
57 In practice, these issues are often addressed by the arbitral tribunal at the beginning
of the arbitration. They may be further confirmed and clarified at a pre-hearing
conference.
58 Despite the introduction of Art. 25(4) second sentence, it is still common practice that
witnesses appear in person at hearings. However, in cases where a witness is genuinely
unable to attend the hearing in person, be it for reasons of age, sickness, travel
restrictions, testimony by video conference may be suitable.
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6 Witness Testimony under Oath and Affirmation

59 Each jurisdiction has different rules with respect to the administering of oaths and
affirmations before giving oral testimony at a hearing. (87) Whereas, for example, arbitral
 tribunals may administer oaths or affirmations for arbitrations seated in England or
Wales, (88) they are not allowed to do so in Germany. (89) The position has not been
settled in Switzerland. (90)
60 The formality of an oath may be comparatively unimportant in countries where false
testimony before an arbitral tribunal is subject to criminal sanctions even in the absence
of an oath, (91) as is the case in Switzerland. Making false statements as a witness is a
criminal offence in Switzerland where the witness has been made aware of such sanctions
in advance of their testimony and still intentionally provides false testimony. (92) An
arbitral tribunal should thus admonish the witnesses of their duty to tell the truth and of
the possible criminal consequences for failing to do so. (93)

D Judicial Assistance with regard to Witness Testimony

61 Under Art. 184(2) PILS, if the assistance of state judiciary authorities is necessary for
the taking of evidence, the arbitral tribunal or a party with the consent of the arbitral
tribunal may request the assistance of the state judge (so called juge d' appui) at the seat
of the arbitral tribunal. State court assistance may be used where a witness is expected
to refuse to appear to give oral evidence or refuses to appear due to apparent logistical
obstacles (e.g., alleged extensive distance to travel to the hearing). (94)
62 It remains to be noted that when an application is made to a state court in
Switzerland for judicial assistance, “the judge shall apply his own law” as provided for in
Art. 184(2) PILS. (95) Hence, a Swiss state court seized with a corresponding request for
judicial assistance from an arbitral tribunal seated in Switzerland will apply the
provisions of the Swiss Code of Civil Procedure governing the taking of evidence in state
P 699 court proceedings. (96)
63 A request for judicial assistance can be made where “necessary for the taking of
evidence”. (97) Applications to the court can therefore be made when other avenues to
obtain the evidence are exhausted, and the arbitral tribunal is unable to summon the
appearance of a witness. (98) In practice, arbitral tribunals very rarely make applications
to the court unless absolutely necessary. (99) Where a party refuses a request from the
arbitral tribunal to provide evidence, arbitral tribunals more commonly take into
account the party's refusal to comply when weighing the evidence than resorting to seek
intervention from the court. (100)

VI Interpretation And Record of The Hearing (Paragraph 5)

A General Remarks
64 Article 25 (5) concerns two logistical matters for an oral hearing, namely the provision
of translation, or rather interpretation services, if any, and the keeping of a record of the
hearing. In practice, the logistical arrangements are often shared between the arbitral
tribunal and the parties. (101)
65 Under Art. 25(5), a request for these services can be agreed upon by the parties or
ordered by the arbitral tribunal on its own motion whenever it deems such services
necessary. It is unlikely that an arbitral tribunal would deny a request from any party for
interpretation services or that a record be maintained. Refusal to grant such a request
could likely give rise to an award being challenged on the grounds of denial of the right to
be heard. (102)

B Interpretation Services
66 Article 25(5) provides that arrangements shall be made for the translation of oral
statements made at a hearing if this is deemed necessary by the arbitral tribunal or if
the parties so agree.
67 It is generally accepted that there is no obligation for a witness to give testimony in
the language of the arbitration. (103) Article 25(5) no longer expressly provides that the
parties shall communicate to the arbitral tribunal and the other parties the language(s)
in which its factual and expert witness(es) will give oral evidence, as was formerly the
case under Art. 25(2) 2004 Swiss Rules. Despite this deletion, it is well accepted that the
parties shall indicate, usually already in the written witness statement, in what language
the witness will be testifying at the hearing. Where a witness submits a witness statement
in the language of the arbitration but intends to testify in another language, the witness
statement should indicate so.
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68 Article 25(5) provides that arrangements for the translation, or rather the
interpretation, of oral testimony shall be made where the arbitral tribunal deems it
necessary, or upon the parties jointly agreeing and communicating this to the arbitral
tribunal before the hearing. In all instances, the arbitral tribunal retains complete
discretion to make whatever arrangements it considers appropriate in the circumstances.
(104)
69 In practice, the arrangements for interpretation of oral testimony are often shared
between the arbitral tribunal and the parties. (105) Frequently, arbitral tribunals ask the
parties to submit the details of the interpreter(s) proposed by a party. These include the
interpreter's curriculum vitae, and sometimes also a signed statement of impartiality and
 independence similar to the obligation under Art. 9(1).
70 The arbitral tribunal usually sets a time-limit by when comments and/or objections
can be raised by the parties to the proposed interpreter. Upon expiration of the time-
limit and no objection being raised, and subject to it being satisfied that the proposed
interpreter is suitable, the arbitral tribunal will confirm the appointment of the
interpreter. Where an objection is raised by a party, the arbitral tribunal will decide
whether the objection is to be upheld, or, for example in the case of a recalcitrant party,
whether the objection is unfounded and to be rejected. The arbitral tribunal also retains
the discretion not to appoint the interpreter if it considers him/ her not suitable to
appear.

C Record of the Hearing

71 According to Art. 25(5), arrangements shall be made for a record of the hearing to be
provided if this is deemed necessary by the arbitral tribunal or if the parties so agree.
72 Various types of recording services can be used in hearings. (106) Verbatim transcripts
are popular, especially since they allow for cross-referencing of the specific evidence
given by a witness for instance in post-hearing briefs. (107) Court reporters or
stenographers routinely attend arbitral proceedings and record the witness examination.
(108) An alternative in smaller cases would be to simply audio record the proceedings. In
that case, legal costs of listening to tapes need to be compared to transcript fees. (109)
Summaries of testimony, drafted by the adjudicator or its assistants, as sometimes used
in civil court cases, are rarely used in international arbitration. (110)
73 The verbatim transcripts may be provided in various formats. In larger arbitrations,
“LiveNote”, where the transcript is produced live during the hearing so that the parties
and the arbitral tribunal are able to read it instantly on their screens, is popular. The
finalized transcripts are often sent to the parties and the arbitral tribunal shortly after
the hearing once the court reporter has had time to review the draft transcript, correct
any errors (typographical or otherwise) and generally tidy up the document.
P 701

D Costs of Interpretation and Recording Services

74 The costs for provision of interpretation and recording services is not insignificant, and
should therefore be considered in light of the circumstances of the case. This includes
whether these costs are proportionate to the amount in dispute, the parties' desire to
have these services, and whether alternatives exist which may be suited to the particular
case.
75 Where the parties have arranged for the interpreters, the parties are typically asked to
confer and indicate how the interpreters' fees are to be paid and whether such fees are
intended to come under an ultimate cost award. (111) Where the arbitral tribunal has
arranged for interpretation and/or recording services, the respective costs are deemed
procedural costs (112) and the arbitral tribunal may thus request (additional) deposits
from the parties to cover such costs (cf. Art. 41(3)). (113)

VII Attendance of Hearings (Paragraph 6)

A Hearings are Held in Camera
76 Article 25 (6) clarifies that hearings are not public but are to be held in camera, unless
the parties agree otherwise. “In camera” means that the public is excluded. The provision
reflects the privacy of international arbitration. (114) This is a fundamental step towards
ensuring that the arbitration remains confidential. (115) While Art. 25(6) only sets forth the
rule of privacy for the hearing, the general rule of confidentiality of an arbitration
conducted under the Swiss Rules is found in Art. 44.
77 Pursuant to Art. 25(6), the parties may agree not to exclude the public. This is a matter
solely within the discretion of the parties. If they agree to the presence of persons other
than the parties and their representatives at the hearing, the arbitral tribunal must
comply with that decision. (116)
78 Neither Art. 25(6) nor any other provision indicates who may attend the hearing in the
absence of a further-reaching agreement of the parties. In addition to the requisite
participants which must be permitted to attend, i.e., the arbitral tribunal, the parties or
their representatives (where a legal entity), and the parties' counsel, if any, witnesses and
expert witnesses may attend, at least for their own testimony (cf. below). Interpreters and
court reporters are also permitted to attend. There should be no need for an explicit
agreement of the parties to permit other persons who assist in the administrative and
logistical aspects to attend the hearing (e.g., administrative secretary). (117) It is,
however, good practice for the arbitral tribunal to give advance notice of who may attend
in order to avoid surprising the parties. (118)
P 702

B Sequestration of Witnesses
79 The second sentence of Art. 25(6) provides that an arbitral tribunal may order
witnesses or expert witnesses to retire during the testimony of other witnesses or expert
 witnesses. The provision focuses on the sequestration of witnesses. (119)
80 Whether certain factual or expert witnesses may be present during the testimony of
other factual or expert witnesses is a matter within the arbitral tribunal's discretion to
determine. (120) It is common practice for an arbitral tribunal to seek the parties'
comments on this issue before making any decision.
81 It is general arbitral practice that arbitral tribunals exclude a witness of fact from
attending the testimony of other factual witnesses prior to his/her own testimony in order
to avoid the witness tailoring his/her testimony. (121) After his/her testimony, the witness
may generally stay in the room provided that there is no material risk that the witness
will be recalled to testify. (122) Fact witnesses are also generally prohibited from
speaking with a party or its counsel about their testimony or the substance of the dispute
during the course of their testimony. (123) Arbitral tribunals generally instruct witnesses,
prior to taking breaks, that they may not discuss their testimony with others. (124)
82 Exceptions to the rule that fact witnesses are not allowed to stay in the hearing room
prior to their testimony are frequently made when a fact witness is simultaneously a
party representative. If such a witness is not allowed to be present in the room even
before his testament, that party's ability to present its case might be adversely affected.
(125) In such case, arbitral tribunals may seek to schedule the witness testimony so that
party representatives will be examined first, before other witnesses testify, or they may
allow a certain number of fact witnesses that may be designated as party representatives
(to avoid circumvention of sequestration requirements). (126)
83 Expert witnesses unlike fact witnesses, are usually allowed to attend testimony of both
fact and expert witnesses, prior to their own testimony. The rationale generally is that the
expert is not testifying concerning factual matters and that more exposure of the experts
to the evidence is beneficial, rather than harmful. (127)

VIII The Uncitral Rules

84 Significant changes and additions have been made to the UNCITRAL Rules in 2010 to
reflect modern practice in international arbitration. The changes adopted in the 2010
UNCITRAL Rules compared well with the 2004 Swiss Rules, which already incorporated
changes from the 1976 UNCITRAL Rules to accord with modern arbitration practice.
P 703
85 What was formally Art. 25 1976 UNCITRAL Rules is now set out in Arts. 27(2), 27(4) and 28
2010 UNCITRAL Rules. The 2010 UNCITRAL Rules now distinguish between provisions
relating to evidence and those relating to hearings, with Art. 27 now entitled “Evidence”,
and Art. 28 entitled “Hearings”. As previously stressed, the restructuring of Arts. 27 and 28
2010 UNCITRAL Rules led to a corresponding restructuring of Arts. 24 and 25 2012 Swiss
Rules.
86 Article 27(2) 2010 UNCITRAL Rules clarifies that any person may be a witness or an
expert witness. This has already been reflected in the 2004 Swiss Rules and is now
contained in Art. 25(2) 2012 Swiss Rules.
87 Article 25 (2) 2012 Swiss Rules (a provision previously stated at Art. 25(6) 2004 Swiss
Rules) expressly permits parties to interview witnesses or potential witnesses. The 2010
UNCITRAL Rules do not explicitly confirm this practice. Article 28(2) 2010 UNCITRAL Rules
however permits witnesses “to be heard under the conditions and examined in the
manner set by the arbitral tribunal”. These conditions may extend to the manner in which
the witnesses may be interviewed, and the preparation of their witness statement under
Art. 27(2) 2010 UNCITRAL Rules.
88 Article 28(3) 2010 UNCITRAL Rules provides for more detailed principles on the
sequestration of witnesses as those set forth in the second sentence of Art. 25(6) 2012
Swiss Rules. Art. 28(3) 2010 UNCITRAL Rules expressly provides that “a witness, including
an expert witness, who is a party to the arbitration shall not, in principle, be asked to
retire”. This exception is not expressly stated at Art. 25(6) 2012 Swiss Rules, but is
generally also followed (cf. above).
P 703

References
1) Compare with Art. 25(6) ICC Rules, under which the parties can request a hearing, cf.
Derains/Schwartz, pp. 273–275.
2) See the relevant case law cited Müller, Swiss Case Law, pp. 269–283.
3) Narayanan/Menon, J.Int.Arb. 2000, pp. 112–113.
4) BGE 117 II 346 para. 1; BGer. of 22 December 1992 para. 5, ASA Bull. 1996, p. 650; BGer.
of 24 March 1997 para. 2, ASA Bull. 1997, pp. 325–326; sceptical: Rüede/Hadenfeldt, p.
209; for further references, cf. Müller, Swiss Case Law, p. 163.
5) Art. 190(2)(d) PILS; Müller, Swiss Case Law , p. 163.
6) Decision of the High Court of Zurich (Obergericht des Kantons Zürich) of 13 February
1918, para. 4, ZR 1918, No. 172, p. 315.
7) Redfern/Hunter/Blackaby/Partasides, para. 6.182; Geisinger, p. 44.
8) Born, pp. 2259–2260, 2265; Sanders, p. 23.
9) Art. 190(2)(d) PILS; relevant case law cited by Müller, Swiss Case Law, pp. 271, 278.
10) Caron/Caplan, pp. 602–604; Born, pp. 2266–2275.
11) Cf., e.g., BGE 86 I 1 paras. 1–2.
12) Redfern/Hunter/Blackaby/Partasides, paras. 6.185–6.188; see also United Nations
Commission on International Trade Law, “UNCITRAL Notes on Organizing Arbitral
Proceedings”, paras. 76–79.
13) Born, p. 2267.
14) Born, p. 2267.
15) Blessing, ASA Special Series No. 22, p. 44.
16) See also Art. 27(2) UNCITRAL Rules; Wirth, Revision pp. 16–17.
17) Poudret/Besson, paras. 662–667.
18) See the discussion in Pietrowski, ArbInt. 2006, pp. 385–391.
19) Blessing, ASA Special Series No. 22, p. 44; Peter, SchiedsVZ 2004, p. 62.
Girsberger/Voser, 2016, para. 1006; Bühler/Dorgan, pp. 7–8.
20) Born, p. 2275.
21) Born, p. 2276.
22) Born, p. 2281.
23) Born, p. 2281.
24) Girsberger/Voser, 2016, para. 1010; Blessing, ASA Special Series No. 22, pp. 45–46;
Peter, SchiedsVZ 2004, p. 62.
25) See also Art. 4(3) IBA Rules; Born, pp. 2258, 2859–2863; Knof, p. 60;
Craig/Park/Paulsson, p. 434; Wirth, SchiedsVZ 2003, p. 13.
26) See Zuberbühler/Hofmann/Oetiker/Rohner, paras. 13–15 at Art. 4(3), however noting
that in the 2010 revision of the IBA Rules, it was added that it shall also not be
improper for a party to “discuss their prospective testimony” with the (potential)
witness.
27) Schneider, para. 25 at Art. 184; although certain provisions expressly provide
exceptions in the case of international arbitration.
28) Born, p. 2860.
29) Born, p. 2859.
30) Van Houtte, ArbInt. 2003, pp. 457–458.
31) Blessing, ASA Special Series No. 22, p. 46.
32) See, for example, Art. 20(5) LCIA Rules, which also permits contact between counsel
and witnesses “[s]ubject to the mandatory provisions of any applicable law […]”;
Turner/Mohtashami, pp. 133–134; Art. 4(3) IBA Rules.
33) Born, p. 2863.
34) Born, p. 2863.
35) Born, p. 2863; Blessing, ASA Special Series No. 22, pp. 45–46; Bühler/Dorgan, J.Int.Arb.
2000, p. 11; Schneider, para. 25 at Art. 184.
36) Born, pp. 2257–2258; Knof, pp. 70–71; Art. 4 IBA Rules.
37) Berger/Kellerhals, para. 1335; Born, pp. 2259–2260.
38) See also Art. 8(2) IBA Rules.
39) Craig/Park/Paulsson, pp. 432–434; Knof, pp. 64, 71; Trittmann/Duve, p. 352; Wirth,
SchiedsVZ 2003, p. 14.
40) Oetiker, Sense and Nonsense, pp. 29–32; Art. 4(4)–(7) IBA Rules; Schlaepfer, pp. 65, 66;
Wirth, SchiedsVZ 2003, p. 14.
41) See the process set out in Art. 8(3)–(4) IBA Rules.
42) Cf. also Art. 8(5) IBA Rules; Schneider, para. 24 at Art. 184.
43) Born, p. 2259.
44) Caron/Caplan, pp. 564–565; Oetiker, ASA Bull.2007, pp. 256–257.
45) See Art. 20.2 LCIA Rules which states that “the testimony of a witness may be
presented by a party in written form, either as a signed statement or like
document”.
46) See also issues discussed in Report from the ICC Commission on Arbitration,
“Techniques for Controlling Time and Costs in Arbitration” (Paris, ICC: 2012), para. 60,
available at: <http://www.iccwbo.org/uploadedFiles/ TimeCost_E.pdf>.
47) Born, pp. 2354–2356.
48) Caron/Caplan, p. 565; Born, pp. 2257–2258.
49) Cf. the situation in Switzerland, as presented in Berger/Kellerhals, para. 1335;
Girsberger/Voser, 2016, para. 1007.
50) Sanders, p. 23; Sanders, YCA 1977, p. 202; see also Art. 4(5) (d)–(e) IBA Rules.
51) Art. 4(7) IBA Rules; Craig/Park/Paulsson, p. 433; with regard to Swiss case law, see
BGer. 4A_539/2008 para. 5.1; Marguerat, 2009, pp. 88–89.
52) Born, p. 2259.
53) Cremades, ArbInt. 2006, pp. 647–648; Girsberger/Voser, 2016, para. 1009.
54) Schneider, ASA Bull. 1993, p. 303.
55) Born, p. 2283.
56) Poudret/Besson, paras. 656–667; Born, pp. 2264–2267;
Redfern/Hunter/Blackaby/Partasides, paras. 6.182–6.184; 6.198–6.201.
57) See generally on party-appointed expert witnesses: Jones, ArbInt. 2008, pp. 137–155.
58) Poudret/Besson, paras. 662–667; Born, pp. 2277–2282;
Redfern/Hunter/Blackaby/Partasides, paras. 6.152–6.168, 6.220–6.227.
59) Girsberger/Voser, 2016, para. 1011.
60) Sanders, YCA 1977, p. 202.
61) See Webster, para. 28-2.
62) Wirth, Int.A.L.R. 2010, pp. 207–209.
63) Wirth, Int.A.L.R. 2010, pp. 207–209.
64) Waincymer, p. 915; Hwang/Chin, p. 656.
65) Waincymer, p. 915.
66) Berger/Kellerhals, para. 1340; Girsberger/Voser, 2016, para. 1036.
67) Lévy/Reed, pp. 640–641; Born, pp. 2207–2210.
68) Bühring-Uhle/Kirchhoff/Scherer, p. 82.
69) Born, p. 2269.
70) Born, pp. 2204–2207; Redfern/Hunter/Blackaby/Partasides, paras. 6.206–6.216.
71) Born, pp. 2205–2206.
72) Redfern/Hunter/Blackaby/Partasides, paras. 6.206–6.216.
73) See the discussion at Oetiker, ASA Bull. 2007, pp. 265–270.
74) Born, p. 2286.
75) Born, p. 2286.
76) Hwang/Chin, p. 653.
77) Berger/Kellerhals, para. 1336.
78) Cf. regarding the conduct of the examination of witnesses Oetiker, ASA Bull. 2007, pp.
266–271.
79) Berger/Kellerhals, para. 1334.
80) Born, p. 2270.
81) Born, p. 2273.
82) Born, p. 2274.
83) Born, pp. 2207–2210.
84) Born, pp. 2292–2293; Redfern/Hunter/Blackaby/Partasides, paras. 6.217–6.227;
Poudret/Besson, para. 658; see generally Peter, ArbInt. 2002, pp. 47–58;
Berger/Kellerhals, para. 1337.
85) Blessing, ASA Special Series No. 22, p. 45; Schneider, para. 28 at Art. 184.
86) See also Art. 28(4) UNCITRAL Rules.
87) Poudret/Besson, para. 661; Born, pp. 2291–2292.
88) Cf. Section 38(5) English Arbitration Act 1996.
89) Sachs/Lörcher, para. 18; Poudret/Besson, para. 661; Aden, p. 630; Schlosser, para.
645.
90) Poudret/Besson, para. 661: The authors state they are “inclined to think that an
arbitral tribunal has such powers [to take an oath from witnesses who appear before
it] since Art. 309 of the Swiss Penal Code (SPC), which governs perjury, does not
distinguish between the witness testimony given before a court or an arbitral
tribunal”; Oetiker, ASA Bull. 2007, p. 268; Rüede/Hadenfelt, p. 263 (arbitrators sitting
in Switzerland are denied the power to take an oath); Schneider, para. 27 at Art. 184;
Berger/Kellerhals, para. 1139: The authors state that “[i]t is debated whether in
arbitral proceedings conducted in Switzerland a witness may be sworn in before
making his or her testimony” and refer at footnote 53 to Schneider, para. 27 at Art.
184 with references.
91) Born, p. 2291.
92) Arts. 307 and 309 of the Swiss Penal Code; Berger/Kellerhals, para. 1139 footnote 56:
At footnote 52, the authors state that “[i]n Switzerland, making false statements as a
party, witness, expert or translator is a criminal offence if committed before an
arbitral tribunal. See StGB, Arts 306, 307 and 309(a)”.
93) Rüede/Hadenfeldt, p. 264.
94) Art. 184(2) PILS; relevant case law cited by Müller, Swiss Case Law, p. 183.
95) Art. 184(2) PILS; relevant case law cited by Müller, Swiss Case Law, p. 183.
96) Cf. Volken, paras. 19–21 at Art. 184; see Dasser, para. 5 at Art. 375.
97) Art. 184(2) PILS; relevant case law cited by Müller, Swiss Case Law, pp. 179–183.
98) Berger/Kellerhals, paras. 1360–1361.
99) Poudret/Besson, paras. 669–675.
100) Schneider, paras. 55–64 at Art. 184; Girsberger/Voser, 2016, para. 1044.
101) Blessing, p. 45.
102) See Art. 15(1), as well as Art. 190(2)(d) PILS; relevant case law cited by Müller, Swiss
Case Law, pp. 269–283.
103) Aden, p. 631.
104) Sanders, YCA 1977, p. 201.
105) Blessing, p. 45.
106) Born, p. 2295.
107) Redfern/Hunter/Blackaby/Partasides, paras. 4.173–4.174.
108) Born, p. 2292.
109) Waincymer, p. 921.
110) Waincymer, p. 921.
111) Waincymer, p. 921.
112) Art. 38.
113) Sanders, YCA 1977, p. 201.
114) Redfern/Hunter/Blackaby/Partasides, para. 2.148; Caron/Caplan, p. 607; see also
Art. 26 ICC Rules.
115) Redfern/Hunter/Blackaby/Partasides, paras. 2.149–2.164; on confidentiality in
investor-State arbitrations, cf. Redfern/ Hunter/Blackaby/Partasides, paras. 2.165–
2.169.
116) Aden, pp. 631–632.
117) Sanders, YCA 1977, p. 202.
118) See the discussion on case management in Born, pp. 2235–2237.
119) See also Born, p. 2288.
 120) Caron/Caplan, p. 608.
121) Born, p. 2288; see also the practice of the Iran-US Claims Tribunal: Caron/Caplan, p.
608.
122) Born, p. 2289.
123) Born, p. 2289.
124) Born, p. 2289.
125) Caron/Caplan, pp. 608–609; Born, p. 2289.
126) Born, p. 2289.
127) Born, p. 2289.

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